1. Hempsons – 21 June 2018 Andrew Daly, Partner
Legal Update - procurement challenges and the lessons that can be learnt
Hempsons – 21 June 2018
Andrew Daly, Partner

2. Objectives of this session
The consequences of being challenged
Effectively dealing with initial challenges from suppliers – tactical approaches
Managing risks at key stages

3. Our experiences Act for both Claimant and Defendant Consequences Time
Costs
Internal
Legal
Reputation

4. Remedies
Damages
Set aside
Ineffectiveness
Automatic suspension

5. Empirical study Low level of procurement litigation in UK
Do suppliers perceive breaches?
Costs of litigation
Fear of reprisals
Courts approach to interim relief
…. So if you are a supplier

6. Supplier considerations
What do they want to achieve?
What are the potential costs?
Lack of information
Ineffectiveness unlikely, damages difficult to obtain and so utilise automatic suspension
Pressure on standstill period
Political pressure?
NHS remedies?

7. Considerations for contracting authorities
Prepare to be challenged
Concentrate on evaluation and debrief
Seek to stay on the front foot
Avoid allegations relating to lack of information
Dealing with challenge letters
Request for information?
Extension to standstill period?
Risk assessment

8. Tactical approaches - supplier
How do you approach the contracting authority?
Formal
Informal
Legal
TCC guidance note
Timing
Limitation

9. Tactical approaches – contracting authority
Options when responding
Timing
Extend standstill period
Lawyers?
TCC Guidance note

10. Key areas of risk (1) Specification Disclosure of evaluation criteria
Compliance with
Drafting of
Disclosure of evaluation criteria
Manifest error
Level of debrief

11. Key areas of risk (2) Limitation arguments Framework agreements
Material variation

12. Less common risks Regulation 84 reports
Regulation 53 disclosure of documents

13. Any questions? www.hempsons.co.uk Andrew Daly
© Hempsons Solicitors 2018
Disclaimer: These slides are made available on the basis that no liability is accepted for any errors of fact or opinion they may contain. The slides and presentation should not be regarded as a comprehensive statement of the law and practice in this area. Professional advice should be obtained before applying the information to particular circumstances
Andrew Daly